Opinion
23-0029
03-27-2024
JOSEPH MAYORGA JR., Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee
Katherine R.J. Scott of New Point Law Firm, PLC, Ames, for appellant. Brenna Bird, Attorney General, and Benjamin Parrott, Assistant Attorney General, for appellee State.
Appeal from the Iowa District Court for Lee (North) County, Wyatt Peterson, Judge.
An applicant appeals the dismissal of his application for postconviction relief.
Katherine R.J. Scott of New Point Law Firm, PLC, Ames, for appellant.
Brenna Bird, Attorney General, and Benjamin Parrott, Assistant Attorney General, for appellee State.
Considered by Tabor, P.J., Greer, J., and Carr, S.J. [*]
CARR, Senior Judge
Joseph Mayorga appeals the dismissal of his application for postconviction relief (PCR), arguing that he was denied effective assistance of counsel at his PCR trial. We reverse and remand for further proceedings.
I. Background Facts and Prior Proceedings.
Mayorga pleaded guilty to second-degree murder, a class "B" felony, in violation of Iowa Code sections 707.1 and 707.3(1) (2017), in January 2018. The district court sentenced Mayorga to an indeterminate term of incarceration not to exceed fifty years with a seventy percent mandatory minimum pursuant to Iowa Code section 902.12. Mayorga did not file a direct appeal.
In August 2021, Mayorga filed the present PCR application. He also requested and the court appointed PCR counsel. In December 2021, the PCR court set the PCR trial date for December 2022. In the trial scheduling order, the court stated that "[c]ontinuances are discouraged and shall only be granted for good cause", must be "filed not later than seven days before the court event for which rescheduling is requested", and "[u]nless and until a motion to continue is granted, the parties should consider the court event still proceeding." It also stated that "[a]ll motions . . . shall be filed with the clerk of court's office at least [sixty] days before trial, with copies to the assigned judge"; transcripts were to be filed within thirty days of the date of the trial scheduling order; written discovery was to be served ninety days before trial, depositions taken sixty days before trial, and any other discovery completed sixty days before trial; and witness lists, exhibit lists, and concise trial briefs were to be filed seven days before trial. Prior to trial, Mayorga's counsel did not request transcripts or submit any witness list, exhibit list, or concise trial brief; counsel for the State did not provide notice of discovery or file a concise trial brief. Neither party filed any motions up to sixty days before trial and no depositions were taken.
In this application, Mayorga alleged that his trial counsel was ineffective for failing to tell him that he would be required to serve a mandatory minimum of seventy percent of his fifty-year sentence; Mayorga claimed that he understood that he would only need to serve forty-five percent.
On the afternoon prior to the PCR trial date, Mayorga's counsel filed an unresisted motion to continue because "[m]ore time is needed to prepare this case for trial." In the motion, he stated that "[p]rior to filing this motion [he had] spoken with the attorney for the State and she does not object to this continuance." He also noted, "It may also be in the interest of judicial economy for the court to set a hearing on the limited issue of whether the application is timely filed. The interests of economy would be served by litigating that issue first." Mayorga's counsel did not provide a copy to the assigned judge. At the time of the PCR trial, and without a ruling on the motion for a continuance, no party appeared. The court dismissed Mayorga's application, stating, "The Applicant has the burden. Trial was not continued. This case is dismissed." Mayorga appeals.
II. Standard of Review.
We review ineffective-assistance-of-PCR-counsel claims de novo. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).
III. Analysis.
On appeal, Mayorga contends that his PCR counsel's failure to prepare for the PCR trial-including by filing the late motion for a continuance-constitutes structural error requiring reversal and a remand for further proceedings. The right to effective assistance of PCR counsel is statutory. See Iowa Code § 822.5 (2021); Lado, 804 N.W.2d at 250 (stating that the applicant "has a statutory, not a constitutional right to effective assistance of counsel on postconviction relief"). Generally, when a PCR applicant claims PCR counsel provided ineffective assistance, the applicant has the burden to establish (1) "counsel failed to perform an essential duty, and (2) this failure resulted in prejudice." Lado, 804 N.W.2d at 251 (applying the constitutional ineffective-assistance-of-counsel framework from Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). However, when an applicant maintains PCR counsel committed structural error, no specific showing of prejudice is required. Id. at 252. When PCR counsel commits structural error, "the underlying . . . proceeding is so unreliable the constitutional or statutory right to counsel entitles the defendant to a new proceeding without the need to show the error actually caused prejudice." Id.
Structural error includes when "counsel is completely denied, actually or constructively, at a crucial stage of the proceeding." Id.; accord Villa Magana v. State, 908 N.W.2d 255, 259 (Iowa 2018) (finding that because Villa Magana was constructively without counsel and "never had a PCR application considered by the district court with respect to the convictions in question," the case must be reversed and remanded for further proceedings). We have found, more specifically, that when PCR counsel filed a motion to continue the hearing on a motion to dismiss but did not file a motion to continue the PCR trial, failed to appear for that trial, and the applicant's PCR application was then dismissed, such failure to act constituted structural error requiring reversal. Burkett Brown v. State, No. 21-1255, 2022 WL 1488542, at * 2 (Iowa Ct. App. May 11, 2022) (reversing and remanding for further proceedings because "Burkett Brown 'was constructively without counsel during his [PCR] proceeding as his application was dismissed without any consideration of its merits or meaningful adversarial testing'" (citation omitted)). But see Hoosman v. State, No. 17-1277, 2018 WL 3912122, at *3 (Iowa Ct. App. Aug. 15, 2018) (finding that when a PCR application was denied after PCR counsel prevented the application from being dismissed pursuant to the automatic dismissal rule and filed a timely appeal which resulted in reversal and new ruling on the merits, the applicant was not constructively without counsel).
The facts here are similar to those in Burkett Brown. See 2022 WL 1488542, at *1. The State responds that while Burkett Brown involved structural error, here, Mayorga's counsel only committed routine negligence related to the late filing of the motion for a continuance, which does not mandate reversal and remand. Yet, filing a motion for a continuance-citing the need to prepare for trial-over a year after the PCR trial date was set and only a few hours before the date for the PCR trial, represents a deficiency of any due care, and not ordinary error. The motion was the only action taken by Mayorga's counsel in this case; Mayorga's counsel did not meet any of the deadlines set in the trial scheduling order, including failing to request transcripts, submit any witness list, exhibit list, or a concise trial brief, or take any depositions. Similarly, Mayorga's counsel failed to appear at the time set for the PCR trial, even though the court had not ruled on his pending motion for a continuance. Each of these failures was in direct defiance of directions of the court provided in the trial scheduling order. Such errors are nearly identical to those in Burkett Brown. See id. at *2. Both the legal analysis and application of the law to the facts in Burkett Brown are persuasive and guide our decision here.
The State also asks that we overrule, limit, or clarify Lado to find that constructive denial of counsel requires complete abandonment. But we are required to follow supreme court precedent. State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014) ("We are not at liberty to overrule controlling supreme court precedent."); State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) ("We are not at liberty to overturn Iowa Supreme Court precedent."). And, in Lado, although Lado's counsel took some steps to advance Lado's PCR action, like filing an application to copy the file and an application for an extension, our supreme court still found counsel's performance deficient enough to rise to the level of structural error. 804 N.W.2d at 252-53. What's more, Lado's counsel was present and represented Lado at the hearing on the motion to dismiss. Id. at 250. Mayorga's counsel did less in this instance, and we are unable to limit Lado to find otherwise.
Lastly, in the alternative, the State contends that any error was harmless as Mayorga's application was time-barred. Mayorga's counsel brought up the potential statute-of-limitations issue in his motion for a continuance. The State, having failed to file an answer to the petition, and having failed to file a dispositive motion, did not raise the three-year statute of limitations at any point. That issue was not before nor ruled on by the PCR court. For that reason, we decline to address it on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal."); State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994) ("We may not consider an issue that is raised for the first time on appeal, 'even if it is of constitutional dimension.'" (quoting Patchette v. State, 374 N.W.2d 397, 401 (Iowa 1985))). We take no position on the merits of that issue, and reverse and remand this case to the PCR court for further proceedings.
Under the statute of limitations for PCR filings, "applications must be filed within three years from the date the conviction or decision is final or, in the event of an appeal, from the date the writ of procedendo is issued." Iowa Code § 822.3. Because Mayorga did not appeal his conviction, the statute of limitations began to run on the date of his conviction and three years passed in January 2021, six months before Mayorga filed this PCR application.
IV. Conclusion.
Finding that Mayorga's counsel's failure to prepare for the PCR trial and moving for a continuance after over a year had elapsed since the PCR trial date was set, and on the eve of the PCR trial, amounted to Mayorga being constructively without counsel, and thus finding structural error, we reverse the court's dismissal of the PCR application and remand for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
[*] Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2024).